INTERNATIONAL COURT OF JUSTICE
ACCORDANCE WITH INTERNATIONAL LAW
OF THE UN/LATERAL DECLARAT/ON OF
INDEPENDENCE BY THE PROVISIONAL INSTITUTIONS
OF SELF-GOVERNMENT OF KOSOVO
(REQUEST FOR ADVISORY OPINION)
WRITTEN COMMENTS OF THE KINGDOM OF SPAIN
JULY 20091.INTRODUCTION
1. Given the opportunity offered to UN Member States to submit written
comments in the second part of the written phase of the advisory
proceedings on the Accordance with International Law of the unilateral
declaration of independence by the provisional institutions of self
govemment of Kosovo (ICJ Order of 21 October 2008), the Government
of Spain has decided to submit these written comments to the
International Court of Justice. Spain's decision stems from its firm
purpose to actively cooperate with the ICJ, whose jurisdiction Spain
trusts deeply and unfailingly.
2. First of all, Spain wishes to reiterate the arguments laid out in its written
statement of 14 April 2009, as well as the conclusions reached in the
said statement, which Spain continues to consider as being adequate
and useful in the present advisory proceedings.
Nevertheless, having conducted a detailed examination of the
written statements presented by other States, and of the written
information supplied by the Provisional Institutions of Self-Government of
Kosovo (PISG), Spain wishes to make some brief comments that are to
be understood as complementary to its written statement of 14 April
2009.
These comments regard the scope of the principle of territorial
integrity (Il), the rightto self-determinationand secession (Ill), and certain
issues related to the alleged acquiescence of certain international organs
to the Unilateral Oeclaration of lndependence (UDI) (IV). On the other
hand, Spain does not consider it necessary, at this stage, to pronounce
on the competence of the Court to exercise its jurisdiction or on the
scope of the question. Regarding these two issues, Spain reiterates the
arguments set out in its written statementof 14April 2009.
2 At any rate, the present comments are made by Spain without
prejudice to the possibility to proceed to a more extensive consideration
of its content, or of other pertinent issues, at a later stage in the
proceedings.
Il. THE SCOPE OF THE PRINCIPLEOF TERRITORIAL INTEGRITY
3. As expressed in its written statement, Spain considers the principle of
territorial integrity to be essential to guaranteeing stability and
international peace and security. Therefore, this principle holds a central
place among the fundamental principles of contemporary international
law, and is part of the principle of sovereign equality of States and of the
principle that States shall refrain in their international relations from the
threat or use force against the territorial integrity or political
independence of any State, as such principles are defined in General
Assembly Resolution 2625 (XXV). Moreover, the fact that territory is one
of the defining elements of statehood should not be left out, which entails
that the principle of territorial integrity is also to be analyzed from this
perspective.
4. Bearingthe previous considerations in mind, Spain understands that it is
not possible to make an absolute distinction between how the principle of
territorial integrity can be invoked with regard to third States and how it
can be invoked with regard to domestic entities operating within the
territory of the State. Such a distinction aims at restricting the application
of this principle to the purely international level. lt thus results in a merely
formai understanding of the principle of territorial integrity, which takes
into account neither intra-state reality nor the most recent international
practice.
On the other hand, the fact should not be overlooked that a
violation of the principle of territorial integrity through actions carried out
by domestic actors within the State will inevitably bear international
3 consequences. The reason is, first of ail, that it affects an essential
element of statehood, thus possibly affecting international legal
personality and entailing a breach of obligations erga omnes. And, in the
second place, it will predictably have other immediate consequences in
the international scene in the form of acts carried out by other
international actors, States in particular, following the domestic actions
mentioned above.
5. ln conclusion, Spain considers it untenable to reduce the principle of
territorial integrity to a principle operating at an exclusively international
level, which in turn means that this principle cannot be understood as an
obligation that only third States and other subjects of international law
must comply with. The scope- in terms of opposability- of the principle of
territorial integrity cannot be limited in this manner.
Ill. SELF-DETERMINATION OF PEOPLESAND SECESSION
6. Secondly, Spain wishes to express its opinion regarding the meaning and
scope of the right to self-determination which, as it is well known, is one
of the fundamental principles of contemporary international law. This
principle must be interpreted coherently and in connection with the rest of
the fundamental principles of the international legal order, and especially
with the principle of sovereignty and territorial integrity.
7. From this position, and broadly speaking, nothing would prevent this
principle from applying in the Kosovo case, if the proper requirements for
its application are given, and always within the parameters established
by international law to that effect. Among the requirements, one could
first underline the need to prove the existence of a people having the
right to self-determination. Among the parameters, it must be underlined
that the right to self-determination can be exercised along a number of
different paths. The possibilities range from the various forms of self
government (special or general) within a pre-existing State to the
4 independence of the people in question and the subsequent creation of a
new State. Generally speaking, International law currently in force does
not favour one particular option over the rest regarding different forms of
self-determination. Therefore, it cannot be concluded that there exists a
tendency in international law and practice to equate the right to self
determinationwith independence.
From this perspective, and leaving now aside the issue regarding
whether what exists in Kosovo is a people in the above referred sense or
a minority, it must be underlined that Resolution 1244 (1999) is an
outstanding example of how the right to self-determination has been
given shape through a self-government regime inserted in, and
guaranteed by, an international administration regime which has been
established and regulated by the Security Council. And it cannot be
concluded that this arrangement is contrary to international law, or to the
right of self-determination of peoples, only because it has not
automatically resulted in Kosovo'saccess to independence.
8. Moreover, Spain also wishes to express its opinion regarding secession
as a form of sanction or remedy, which has no proper basis in
contemporary international law. This understanding of secession faces
serious problems in the case of Kosovo, even when linked to the
safeguard clause defined in Resolution 2625 (XXV)as a means to find
an adequate balance between the right to self-determination and
territorial integrity. Thus, suffice it to say now that, in Spain's view, with
regard to the massive and systematic human rights violations and
minority rights violations in Kosovo, and to the suspension of Kosovo's
self-government regime dictated by Serbia in 1989, the reaction of the
international community has materialized, already in 1999, in precisely
the establishment of an international administration regime of Kosovo
which includes a self-government system of this Serbian province. ln
addition to such a regime, which sufficiently guarantees self-government
under international contrai, the UN Security Council has set in motion a
political process for the determinationof the future status of Kosovo. This
5 process is, in the case at issue, the valid procedure for the final exercise
by Kosovo- in a form yet to be defined- of a possible right to se/f
determination.
Bearing in mind this remedy fashioned by the international
community in 1999, Spain considers that no other form of reaction or
remedy is legally defensible, much less so through the secession-as
sanction or secession-as-remedy formulas, which, as pointed out above,
have no proper legal basis in international law, this being of particular
bearing on the case of Kosovo.
IV.- THE ALLEGED ACQUIESCENCE TO THE UNILATERAL
DECLARATION OF INDEPENDENCE BY INTERNATIONAL ORGANS
9. As Spain pointed out in its written statement, for the purpose of rendering
its Advisory Opinion, the ICJ should not take into account any act taking
place after the UDIthat is performed on the basis thereof, since the acts
adopted on the basis of another act (the UDI) whose accordance or
conformity with international law is in question can hardly be considered
as valid in order to answer the question submitted by the General
Assembly to the ICJ. This line of reasoning equally applies to any silence
or omission that may have occurred after the adoption of the UDI by the
PISG.
1O. From this perspective, Spain wishes to reiterate, as it did in its written
statement, and other States equally affirmed in full or in part in their
written statements, that the situation in Kosovo has been, and is being,
continually dealt with by the UN Security Council, that Resolution 1244
(1999) is currently in force in its entirety, and that the reorganization of
the international presence in Kosovo is exclusively due to the need to
adapt to changing practical circumstances and events taking place in
Kosovo.
6 Therefore, the process to determine Kosovo's future status
remains open, and neither its existence nor its legal validity can be called
into question. This is true even if, given the different level of collaboration
of the parties concerned, this process has gone, and is going, through
different stages of diverse, sometimes critical, nature. The process has
even undergone slowing down phases and periods of blockage of
considerable importance.
However, it cannot be concluded from those facts that the Security
Council has put an end to its functions and involvement in Kosovo, nor
that the silence of the Security Council, or that of other UN organs,
implies a measure of acquiescence to the UDI that may confer legal
validity on it.
11. With regard to the first issue, Spain wishes to reiterate, as it did in its
written statement, that it is for the Security Council to contrai the process
to determine Kosovo's future status. ln the fulfilment of that function, the
Security Council cannot be unilaterally replaced by the PISG or other
international actors, for such a replacement could be dangerously
understood as an alteration of the system established by the UN Charter,
which confers on the Security Council the primary responsibility in
maintaining international peace and security. And it must be recalled that
when such a responsibility is taken on by the Security Council, not even
the General Assembly acting within the framework of the "Uniting for
Peace" Resolution can replace it.
12. With regard to the second issue, it is true that acquiescence can play an
essential part in creating international obligations and legal regimes.
Nevertheless, it is also true that such effects have their limits. ln
particular, acquiescence is apt to produce such effects within a
framework of inter-subject relations. Within this framework, action and
acquiescence always take place between two subjects (or two sets of
subjects) that are directly concerned by the legal regime whose
7 establishment is intended, and whereof rights and obligations will emerge
that will affect each of the concerned subjects, or groups of subjects.
Such, however, is not the system whereby the Security Council
and other UN organs act in Kosovo. lt is neither the framework within
which silence concerning the UDI has allegedly taken place (silence by
the Security Council, by the Secretary General, or by other UN organs), a
silence that would supposedly be a ground for deducing a sort of
acquiescence.
Contrariwise, the silence of the Security Council, considered
strictly as a body, must be understood, in Spain's view, as proof of a lack
of consensus in the institutionalized international community regarding
the validity of the UDI within the framework of the process to determine
Kosovo's future status. This lack of consensus also regards the
termination of the political process itself. At any rate, such a silence can
by no means be interpreted as proof that the Security Council has not
dealt with the issue, or as a form of acquiescence that would, if implicitly,
support the claim that the end of the process started by Resolution 1244
(1999) has ended, or that would confer validity on the UDI, thus
producing its accordance with international law. The practice of the
relevant States is, needless to say, sufficiently significant in this respect.
On the other hand, the silence of the Secretary General, of its
Special Representative, and of UNMIK, cannot be understood as forms
of acquiescence to the validity of the UDI. Even though neither the
Special Representative nor the Secretary General has declared that the
UDI is null and void, this does not entail acceptance of its validity, or
acceptance of the termination of the process. This is particularly clear if
one bears in mind that the Secretary General himself has repeatedly
declared that Resolution 1244 (1999) is currently in force as long as the
Security Council does not decide otherwise, and that the Secretary
General has defined, strictly and repeatedly, the principle of "status
neutral" of the international presence in Kosovo. Such a status could not
8 be applied if the Secretary General and its Special Representative had,
through their silence, manifested their acquiescence to the validity of the
UDI and to the new international legal status of Kosovo emerging from it.
* * * * * * * * * *
13. Finally, Spain wishes to express again the importance it attaches to
these advisory proceedings and pleads with the Court to take into
account, if it so deems appropriate, these written comments, as well as
its written statement of 14April 2009.
Madrid, 17 July 2009
,a~3;?)~
<__:l--~~
Concepci6n Escobar Hernandez
Representative of the Kingdom of Spain
9
Written Comments of Spain